Court Rejects Faculty Union

Almost a year ago, faculty members at the University of Illinois at Chicago filed papers to unionize. The drive at the university was seen as a major victory for academic labor, which has struggled in recent years to organize at research universities. And at a time when the treatment of those off the tenure track is an increasingly important issue to faculty leaders, the new union was to have combined tenure-track and adjunct faculty members. Since then, the union has been engaged in a legal fight with the university, which has argued that Illinois law does not allow joint units for tenure-track and non-tenure track faculty members. Along the way, the union won most of the skirmishes, but that ended on Thursday.

An Illinois appeals court ruled that the Illinois Educational Labor Relations Board exceeded its authority when it certified the new faculty union -- and so effectively stripped the union of its authority. The legal fight between the union is based on interpretations of a narrow provision of state law. Thursday's ruling found that the law's direct language was ambiguous but that there was evidence of what legislators intended with the law, and that this evidence backed the university's interpretation that a joint bargaining unit was illegal.

The university has said in the past that it would not object to separate unions for tenure-track and non-tenure-track faculty members. And a university spokesman confirmed that position Thursday night after the appeals court ruling came down.

One of the organizers of the union criticized the decision, but said that the union was determined -- one way or another -- to move ahead to bargaining with the administration. "The administration decided to take this issue to a conservative appellate court in Springfield, when of course the proper place to appeal would have been Chicago, where the union activity has taken place.  They got the decision they wanted, which was a minor victory in which the conservative court ruled, as conservative courts and venues have ruled throughout the U.S. in these times -- making a decision on technicalities," said Lennard J. Davis, an English professor at the university, via e-mail. "Because this is a technical decision, we  the university has a Pyrrhic victory. The decision can and may be appealed by us to the Supreme Court of Illinois."

But he added: "At the same time our central and focused interest is to to begin collective bargaining as soon as possible and within the framework of Illinois law.  To that end, we are willing to take whatever steps required to bring such negotiations about.  We believe that we have the ability to do that sooner rather than later, and whether we are two bargaining units of tenured and non-tenured faculty in the same union or one unit within the same union, we hope to be sitting down with the administration to begin collective bargaining within a month or two."

Nationally, there are faculty unions that include tenure-track and adjunct faculty members together, and there are also campuses with separate units. There are a range of opinions among faculty members and administrators about the best set-up for faculty unions, but professors at Illinois-Chicago have argued that the two groups have common interests, and that better treatment of those off the tenure track is one of the major goals of those on the tenure track.

The ruling by the Illinois appeals court didn't focus on the relative merits of joint or separate unions, but on a specific provision in state law. Illinois statute says that "the sole appropriate bargaining unit for tenured and tenure-track academic faculty at each campus of the University of Illinois shall be a unit ... that includes all tenured and tenure track faculty." The university argued that this language means that only tenured and tenure-track faculty members can be in the unit. The union argued that just because the unit includes some groups doesn't it mean that those are the only groups that can be covered. And the Illinois Educational Labor Relations Board backed the union's view.

The appeals court reviewed both sides of the debate and couldn't decide. "No matter which of the two interpretations one chooses, one ends up sacrificing some language in the statutory text. Consequently, we hold that the second paragraph of section 7(a) is ambiguous," said Thursday's decision.

In such cases, the appeals court said, it must try to determine the meaning through legislative history, not the actual language of the law. Here, the appeals court cited two things. First, it noted that an earlier version of the law included non-tenure-track faculty member in the list of those included by the measure. Second, the appeals court noted that a legislative sponsor explaining the measure in the Illinois Senate, referred only the tenured and tenure-track faculty members. These bits of evidence, the appeals court said, show that lawmakers were thinking of the tenured and tenure-track faculty members and adjuncts separately when legislators clarified  faculty union rights for the University of Illinois.